Propuesta de mejora en la implementación del SG-SST

Introduction

210. This section addresses several questions lying at the points at which (i) cultural heritage and TCEs are first accessed by folklorists, ethnographers, ethnomusicologists, cultural

anthropologists and other fieldworkers, and (ii) TCEs are documented, recorded, displayed and made available to the public by museums, inventories, registries, libraries, archives and the like.

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211. The activities of collectors, fieldworkers, museums, archives etc., are important for the preservation, conservation, maintenance and transmission to future generations of intangible and tangible forms of cultural heritage. Museums also play a valuable educational role. 212. However, the “public domain” status of cultural heritage and TCEs that are not

protected by IP challenges efforts to protect the interests of indigenous and local communities in their cultural heritage and TCEs. This is particularly so in view of the growing trend of museums to digitize their cultural heritage collections and make them publicly available for both museulogical/curatorial as well as commercial purposes.

213. Indigenous peoples and traditional communities have expressed certain concerns associated with the collection, recordal, and making available of their tangible and intangible cultural heritage, particularly in relation to indigenous and customary obligations, and these concerns must also be addressed.

214. This section addresses:

(a) the possible development of IP-related protocols, codes of conduct and guidelines

for use by fieldworkers as well as museums and other such institutions;

(b) the possible development of an IP check list and model IP contractual clauses for

use in elaborating deposit, access, release and license agreements used by ethnomusicologists and other fieldworkers, archives, museums, libraries and other institutions;

(c) regarding specifically digitized cultural heritage, the development of model

IP-related “Rules of Use” and “Copyright Notices” for use in connection with websites, CD- ROMs, specialized databases and other electronic multimedia products.

215. These were among suggestions made during previous WIPO and other activities (such as the WIPO fact-finding missions and the Folk Heritage Collections in Crisis Conference, organized by the American Folklore Society and the American Folklife Centre at the Library

of Congress in December 2000).144

216. This section also addresses whether or not it is advisable, from an IP standpoint, for cultural communities to undertake the recordal and documentation of public domain TCEs as a strategy for either:

(i) establishing IP in the TCEs (for “positive” protection purposes); or,

(ii) preventing the acquisition of IP in the TCEs (for “defensive” protection purposes).

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See WIPO, Intellectual Property Needs and Expectations of Traditional Knowledge Holders:

WIPO Report on Fact-Finding Missions on Intellectual Property and Traditional Knowledge (1998-1999), (WIPO, 2001). This need was explicitly referred to for example during the

missions to South Asia and the Arab Countries (see pages 111 and 168). See also Concluding Discussion and Recommendations, Folk Heritage Collections in Crisis Conference,

217. Relevant issues that require exploration could include: (a) the relevance of registries, inventories and lists established under cultural heritage legislation and programs; (b) whether, for purposes of either positive or defensive IP protection of TCEs, a registration system is desirable and feasible; (c) the relevance in this regard of sui generis database protection; (d) the role of digital rights management tools, referring to both usage rules and content security, and (e) whether and if so how the documentation and recordal of TCEs can also foster and promote respect for relevant indigenous and customary obligations.

218. The European Community and its Member States and OAPI in their comments on WIPO/GRTKF/IC/4/3, and Switzerland during the Committee’s fourth session, expressed support for activities in thisregard as had been briefly outlined in that document. These related issues could, subject to budgetary considerations, be addressed collectively in one or more technical and expert workshops involving relevant IGOs, NGOs, cultural institutions and registries such as those mentioned below and in previous documents. The results of those workshops could include progress on some of the items mentioned above and would be fed into the “WIPO Practical Guide” on the legal protection of TCEs and related traditional knowledge.

Cultural heritage museums and institutions

219. Responses to the WIPO folklore questionnaire of 2001,145the results of other WIPO

activities and the WIPO Report on the fact-finding missions are replete with examples of cultural heritage museums and other institutions. A few examples from different regions are cited here:

(i) the Canadian Museum of Civilization is a federal Crown corporation which serves

as the national museum of human history of Canada. The Museum’s Cultural Studies program collects tangible folkloric art as well as tapes of songs, languages, oral histories and personal narratives. To reflect the wishes of members of some Aboriginal groups regarding authorization of access to their expressions of folklore, the Museum’s Ethnology section restricts access to some collections of sacred Aboriginal materials to members of culturally affiliated groups, and does not make them available to members of the general public;

(ii) the Oman Center of Traditional Music, Muscat, Oman was created in 1983 to

document, conserve and promote traditional Omani music. Since then the Center has documented more than 80% of Oman’s musical traditions, including more than 23, 000 photographs, 580 audiovisual recordings and a large number of sound recordings. The Center has also compiled digitized databases of these documentation materials. The Center has developed a two-step approach to documentation: first, the Center maps which traditions are still alive by speaking to traditional musicians and, second, the traditional music and dances are recorded in sound recordings, audiovisual recordings, photographs or a combination thereof. The Center takes a comprehensive approach to the documentation of musical traditions, which includes not only a recording of a particular musical work, but also of associated dances, social customs and gatherings, healing methods, planting and farming methods, fishing methods, handicrafts, etc. This comprehensive approach to documentation is necessary because “in Oman traditional music is part of traditional lifestyles,” which 145

For example, the responses of Antigua and Barbuda, Barbados, Burkina Faso, Gambia, Ghana, Honduras, Iran (the Islamic Republic of), Namibia, Panama, Senegal and the United States of America.

include healing, fishing, planting and other work techniques.146 In its documentation work, the Center has identified more than 130 different types of traditional music in Oman, which can be classified, however, as expressions of four main traditions of Omani song: sea and fishing songs, celebration songs, Bedouin traditional music and traditional mountain music;

(iii) in China, national folk literature and arts are being recorded in the Ten Collections

of the Chinese National Folk Literature and Arts (referred to as the “Great Wall of

Civilization”). These Ten Collections comprise some 300 volumes of collections of Chinese songs, proverbs, operas, instrumental music, ballads, dances, and tales;147

(iv) the Archive of Folk Culture at the American Folklife Center, Library of Congress,

United States of America was established in 1928 and today maintains a multi-format, ethnographic collection that includes over two million photographs, manuscripts, audio recordings and moving images. The other major government repository for ethnographic material is the Center for Folklife and Cultural Heritage at the Smithsonian Institution. Established in 1967, its archive holds over 1.5 million photographs, manuscripts, audio

recordings and moving images;148

(v) in Ghana, the International Center for African Music and Dance (ICAMD), based

at the University of Ghana in Legon aims at the promotion of international scholarship and creativity in African music and dance. One of its main priorities is to serve as an archival, documentation and study center for African music and dance. The center’s primary goal in this respect is to develop a unique library of oral texts (interviews, song texts, stories etc.), unpublished manuscripts and documentation of musical events (such as festivals, rituals and ceremonies), and the acquisition of manuscripts, books and audio-visual materials on African music, dance, drama as well as general works in the field of ethnomusicology and music education. The documented works include anthropological and historical materials on African societies and cultures, dictionaries and encyclopaedias of music, language dictionaries and a substantial collection of audio and video recordings of African music, dance and oral literature;149

(vi) in Guatemala, efforts have been made to record and document certain expressions

of traditional culture and folklore. A Registry of Archaeological, Historical and Artistic Property has been in operation since 1954, and its importance has grown in recent times. Its purpose is to record and thus maintain information on the historical origin, meaning and 146

Meeting with officials of the Oman Center of Traditional Music, Muscat, February 27, 1999. See WIPO, Intellectual Property Needs and Expectations of Traditional Knowledge Holders: WIPO Report on Fact-Finding Missions on Intellectual Property and Traditional Knowledge (1998-1999), (WIPO, 2001).

147

International Symposium on the Protection and Legislation of Folk/Traditional Culture (Beijing, December 18-20, 2001).

148

Response of the United States of America. See also Bulger, P., “Preserving American Folk Culture at the Library of Congress”, paper delivered at International Symposium on the Protection and Legislation of Folk/Traditional Culture (Beijing, December 18-20, 2001). 149

ICAMD Newsletter, September, 1998 and at meeting with Professor J.H. Kwabena Nketia, Director, ICAMD, January 25, 1999. See WIPO, Intellectual Property Needs and Expectations of Traditional Knowledge Holders: WIPO Report on Fact-Finding Missions on Intellectual Property and Traditional Knowledge (1998-1999), (WIPO, 2001). On documentation of expressions of folklore in Africa, see also Mould-Idrussu, B., “The Experience of Africa”, WIPO-UNESCO World Forum, Phuket, 1997, p. 17 ff.

features of cultural expressions. The Registry records not only artifacts, monuments and other tangible objects of the national cultural heritage (including all pre-Hispanic, Mayan objects), but also intangible expressions of national culture such as traditional fiestas, oral traditions and legends. In Guatemala, the latter were being compiled and documentedin particular by

the Centro de Estudios Folclóricos of the Universidad de San Carlos;150

(vii) the Centre of Arab and Mediterranean music “Ennejma Ezzahra”, Sidi Bou Said,

Tunisia was established in 1991with the objectives of: documentation and conservation of expressions of traditional Arabic and Mediterranean music; establishment of a database comprising an extensive and almost exhaustive set of recordings of traditional Tunisian music; publication and making available of such music to the public; publication of studies and research on traditional Tunisian, Arabic and Mediterranean music; and, organization of concerts. The Centre has compiled an impressive collection of documents through a

systematic approach for such purpose. These documents are classified and made available to the public. It includes at its premises a Research Center, which offers research facilities for students and scholars in the field of musicology;151

(viii) in Laos, La Banque de Données Ethnographiques du Laos, containing 6000 digitized photographs of traditional dress, musical instruments, handicrafts and textiles. Relevant international conventions and programs

UNESCO

220. UNESCO has undertaken several initiatives at the international, regional and national levels concerning the identification, conservation, preservation and dissemination of

“intangible cultural heritage” and/or “traditional culture and folklore.”

221. A number of instruments, recommendations and programs have been adopted and established by UNESCO over the years:

(i) the 1966 Declaration on the Principles of International Cultural Cooperation152

states in Article 1: “1. Each culture has a dignity and value which must be respected and preserved. 2. Every people has the right and the duty to develop its culture. 3. In their rich variety and diversity, and in the reciprocal influences they exert on one another, all cultures form part of the common heritage belonging to all mankind;”

(ii) the UNESCO Convention on the Means of Prohibiting and Preventing the Illicit

150

Meeting with representatives of the Ministry of Culture, Guatemala, January 18, 1999. See WIPO, Intellectual Property Needs and Expectations of Traditional Knowledge Holders: WIPO Report on Fact-Finding Missions on Intellectual Property and Traditional Knowledge (1998- 1999), (WIPO, 2001).

151

See also intervention of Tunisia at First Session of the Intergovernmental Committee

(WIPO/GRTKF/IC/1/13, par. 36) and WIPO, Intellectual Property Needs and Expectations of Traditional Knowledge Holders: WIPO Report on Fact-Finding Missions on Intellectual Property and Traditional Knowledge (1998-1999), (WIPO, 2001).

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Import, Export and Transfer of Ownership of Cultural Property, 1970 seeks to protect “cultural property”153against theft, illicit export and wrongful alienation. States which are party to the Convention are bound to return to other State Parties cultural property that has been stolen from a museum or similar institution and is inventoried, to take measures to control the acquisition of illicitly traded cultural objects by persons and institutions in their country, to co-operate with other States having severe problems of protection of their heritage by applying import controls based on the export controls of other States Parties, and to take steps to educate the public. In furtherance of the Convention, UNESCO requested the International Institute for the Unification of Private Law (UNIDROIT) to draw up a new treaty to complement the 1970 UNESCO Convention by providing minimal rules of uniform law. This resulted in the UNIDROIT Convention on Stolen or Illegally Exported Cultural

Objects, 1995.154 UNESCO’s International Code of Ethics for Dealers in Cultural Property is

a voluntary code designed to harmonize practice in the art trade along the principles of its international standard setting instruments to prevent illicit traffic in cultural goods;

(iii) the UNESCO Convention Concerning the Protection of the World Cultural and

Natural Heritage (“the World Heritage Convention”) was adopted by the General Conference

of UNESCO in 1972. The Convention defines the kind of natural155or cultural156sites which

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“Cultural property” as defined in Article 1 of Convention “…means property which, on religious or secular grounds, is specifically designated by each State as being of importance for archaeology, prehistory, history, literature, art or science and which belongs to the following categories:

a. rare collections and specimens of fauna, flora, minerals and anatomy, and objects of palaeontological interest;

b. property relating to history, including the history of science and technology and military and social history, to the life of national leaders, thinkers, scientists and artists and to events of national importance;

c. products of archaeological excavations (including regular and clandestine) or of archaeological discoveries;

d. elements of artistic or historical monuments or archaeological sites which have been dismembered;

e. antiquities more than one hundred years old, such as inscriptions, coins and engraved seals; f. objects of ethnological interest;

g. property of artistic interest, such as:

(i.) pictures, paintings and drawings produced entirely by hand on any support and in any material (excluding industrial designs and manufactured articles decorated by hand); (ii.) original works of statuary art and sculpture in any material; (iii.) original engravings, prints and lithographs; (iv.) original artistic assemblages and montages in any material;

h. rare manuscripts and incunabula, old books, documents and publications of special interest (historical, artistic, scientific, literary, etc.) singly or in collections

i. postage, revenue and similar stamps, singly or in collections;

j. archives, including sound, photographic and cinematographic archives;

k. articles of furniture more than one hundred years old and old musical instruments. 154

<http://www.unesco.org/culture/legalprotection/> 155

The Convention defines “natural heritage” as follows: Article 2 “… natural features consisting of physical and biological formations or groups of such formations, which are of outstanding universal value from the aesthetic or scientific point of view; geological and physiographical formations and precisely delineated areas which constitute the habitat of threatened species of animals and plants of outstanding universal value from the point of view of science or

can be considered for inscription on the World Heritage List, and sets out the duties of States Parties in identifying potential sites and their role in protecting and preserving them. By signing the Convention, each country pledges to conserve not only the World Heritage sites situated on its territory, but also to protect its national heritage. The Convention further explains how the World Heritage Fund is to be used and managed and under what conditions international financial assistance may be provided;

(iv) UNESCO’s work on the protection of folklore resulted in 1989 in the

Recommendation on the Safeguarding Protection of Traditional Culture and Folklore. This Recommendation encourages international collaboration, and considers measures to be taken for the identification, conservation, preservation, dissemination and protection of traditional culture and folklore. In 1999, an International Conference was held in order to assess the

implementation and application of the Recommendation;157

(v) the Living Human Treasures program began in 1996 for the purpose of promoting

the transmission of traditional knowledge and skills by artists and artisans before they are lost through disuse or lack of recognition. The guidelines define ‘Living Human Treasures’ as “persons who embody, who have in the very highest degree, the skills and techniques necessary for the production of selected aspects of the cultural life of a people and the continued existence of their material cultural heritage;”

(vi) in 1998, a program on Masterpieces of the Oral and Intangible Heritage of

Humanity was created to honor the most remarkable examples of cultural spaces (defined as places in which popular and traditional cultural activities are concentrated or as the time usually chosen for some regularly occurring event) or forms of popular and traditional expression such as languages, oral literature, music, dance, games, mythology, rituals,

costumes, craftwork, architecture and other arts as well as traditional forms of communication

and information.158 In addition, it is to encourage governments, NGOs and local communities

to take the lead in identifying, preserving and drawing attention to their oral and intangible heritage;

(vii) the UNESCO Programme for the Preservation and Revitalization of Intangible

Cultural Heritage has launched a publication series to help specialists catalogue and compile from the point of view of science, conservation or natural beauty.”

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The Convention defines “cultural heritage” as follows: Article 1 “… monuments: architectural works, works of monumental sculpture and painting, elements or structures of an archaeological nature, inscriptions, cave dwellings and combinations of features, which are of outstanding universal value from the point of view of history, art or science; groups of buildings: groups of separate or connected buildings which, because of their architecture, their homogeneity or their place in the landscape, are of outstanding universal value from the point of view of history, art or science; sites: works of man or the combined works of nature and man, and areas including archaeological sites which are of outstanding universal value from the historical, aesthetic, ethnological or anthropological point of view.”

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Unesco and the Smithsonian Institution co-organized an international Conference entitled “A Global Assessment of the 1989 Recommendation on the Safeguarding of Traditional Culture and Folklore: Local Empowerment and International Cooperation”, held in Washington D.C., June 27-30, 1990.

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inventories of cultural forms, since they are constantly changing and may disappear forever on the death of their creators. The first volume in this series is a Handbook for the Study of

Traditional Music and Musical Instruments.159 A handbook for the study of vernacular architectural styles is in preparation.

222. Most recently, at UNESCO’s General Conference, 31stSession, a Resolution was